Three Truths About Litigation The Public Needs to Know

Professionally speaking, for more than 30 years, I have lived in the world of litigation. It is the landscape of my every-day working life. When the day is over, I, like many of you, sometimes retreat to the fictional world of television and movies. Every so often, I see a movie or TV show about the civil legal process. And when I do, most of the time, I want to laugh or scream. These fictionalized stories of litigation almost never get it right – in a big way. They undoubtedly create wildly unreasonable expectations with the public about the litigation process. Here are three truths about the litigation process to debunk some of those unreasonable expectations. These may seem too simple to be true. They are certainly not the only truths about the litigation process that will help a client survive the process. However, in more than 30 years of observing and dealing with clients in litigation, I can assure you that they are fundamental truths that many litigants never truly confront.

TRUTH #1: LITIGATION TAKES A LONG TIME.

I know Hollywood has to cram a plot into a limited time period, but I laugh when I see a case portrayed where a major trial (complete with a two minute closing argument) happens shortly after the client walks in the lawyer’s door to hire her. The litigation process is long — always much, much longer than the average person ever imagines. There are unexpected delays. Unexpected rulings change the course of the case. Judge’s calendars jam up. Litigation is not for the faint of heart. It requires commitment and patience. It requires the ability to adjust to changing circumstances, to turn on a dime. No litigant should ever expect quick and efficient results. I am not being a naysayer. It is reality.

TRUTH #2: LITIGATION IS VASTLY MORE EXPENSIVE THAN ORIGINALLY THOUGHT.

Some lawyers agree to represent clients on a “contingent fee” basis. That is, the lawyer receives a percentage of the ultimate recovery as a fee. No recovery, no fee. These contingent fee cases are generally limited to plaintiffs’ personal injury cases or plaintiffs’ business cases where the liability is more apparent and damages substantial. Most non-personal injury civil cases are “fee” cases, where the client pays the lawyer by the hour and pays expenses. A client who engages a lawyer by the hour should be prepared to pay a substantial up-front retainer amount. That, however, is usually only the tip of the iceberg. If the case has any complexity at all, the cost of depositions, motions, and trial will skyrocket beyond what most litigants originally planned. Each case is unique and can change and expand in ways that not even the best lawyers can foresee. As some lawyers are fond of reminding their clients, “litigation is the sport of kings.” It is, and should always remain, the tool of last resort for resolving civil disagreements. Potential litigants should do all they can to settle, even on terms that leave both sides unhappy, rather than launch into the expensive world of litigation.

TRUTH #3: JERK LAWYERS USUALLY MAKE THE PROCESS WORSE FOR THE CLIENT.

We have all seen the Hollywood version of a “good lawyer.” That imaginary lawyer is a flamboyant maverick cut-throat rule-breaker who makes sport of mocking the judge and screaming at his opponent – sometimes in front of the jury – and is never held accountable. Some segment of the public has come to expect that the best sign of a good lawyer is someone who, for want of a better phrase, is a “jerk lawyer.” However, jerk lawyers almost always make things worse for the client. Clients believe they want a “pit bull” for their case, because they falsely assume that acrimony translates into success. However, jerk lawyers often make even a meritorious case impossible to settle, because of the high level of acrimony and distrust created. They cause unnecessary risk to the client by often misbehaving with opposing counsel and drawing sanctions from the court. This, in turn, causes the court to distrust the jerk lawyer, which always hurts the client’s interests.

What many members of the public do not see and know, however, is that the lawyers who succeed consistently in the practice of law are those lawyers who

Thoroughly listen to their clients and meticulously understand the case;

Shoot straight with their clients from the outset;

Think clearly about strategy, about the problems their clients face, and about solutions needed to solve them;

Assert and hold tenaciously to reasonable claims and defenses; and

Write well.

This list is not exhaustive. But perhaps it helps highlight the real factors that point the public to the good lawyers, those who will truly solve the public’s legal problems, not create more.